The purpose of this article is to analyse the Crown Liability and
Proceedings Act from a bilingual and bijural perspective. Before proceeding with this
analysis, a few preliminary comments must be made in order to highlight certain
observations that flow from it.

First, the question of the normative content of a federal statute
must not be confused with that of its form. Professors Morel and Brisson have very clearly
shown the extent and limits of the interaction between federal law and civil law in the
context of the normative content.[1] That study makes it possible to draw a very general distinction between two
different forms of interaction. In some cases, a federal statute presupposes normative
diversity, because it relies on provincial law, which becomes complementary. In other
cases, the federal statute distances itself from provincial law and derogates from it, so
as to reach a certain normative uniformity, a Canada-wide harmonization of solutions. From
this point of view, the Crown Liability and Proceedings Act is a mixture of
complementarity and dissociation: at times, it refers to the law applicable in each
province; at other times, it makes provision for certain uniform rules governing the civil
liability of the federal Crown. The analysis of this Act from a bijural perspective is
thus complicated by this first observation: a good part of the normative diversity that
flows from the Act is the result of a legislative policy that consists in subordination to
provincial law, which varies from one province to the next. In the interpretation of
section 13 of the Act, for example, the duality of systems intended by Parliament (by
reference) must be distinguished from the duality that flows from the perhaps awkward use
of concepts the parameters of which are not the same in civil law as in common law (biens
meubles/personal property, biens immeubles/real property).

The second question, namely the form of federal statutes that
interact with provincial law, is an essential element in the choice that must be made
between textual unity (that is, a single term used in each language to express the norm)
and textual duality (that is, a civil law term and a common law term used in each language
to express the norm). While the goal of textual unity is to find a neutral term or
expression that can make the norm equally accessible to both legal traditions, that of
textual duality is to speak to each person in the "language" (of civil law or
common law) with which he or she is familiar.[2]

Both these types of questions arise in the context of the Crown
Liability and Proceedings Act, as they do for most federal statutes that involve some
interaction with provincial law. The components of the analysis do not fit together in
groups of identical pairs as might be thought (textual unity/normative uniformity; textual
duality/normative diversity), as it is easy to foresee both the possibility of giving
expression to a uniform legal system through four versions of the text (French, English,
civil law and common law) and that of giving expression to normative diversity by using
neutral terms in each language. It is this framework that I have selected to outline the
observations that flow from this preliminary study of the Act.

This being said, before presentation of these observations in
greater detail, it will be useful to restate the obvious: the intensity of the
relationship between the text and the norm must not be exaggerated. The discussions that
took place at the symposium of March 25, 1996, and during the day of work that followed
are a good illustration of this. Beyond the commendable political and symbolic objective
motivating the review of federal statutes, it would be incorrect to believe that the text
and the norm are perfectly interrelated. It is clear, moreover, that the fact of amending
legislation does not always result in a corresponding amendment to the norm. More
specifically, it might be thought that the reading and interpretation of statutory
provisions by jurists (judges and lawyers) also produce normative diversity and
uniformity, regardless of the actual text of the enactment. First, normative diversity can
arise when each person reads only his or her version while seeking solutions within his or
her legal tradition, regardless of the intended uniformity of the text. Second, normative
uniformity can arise when the practice of bijural interpretation in a single forum (the
Federal Court, for example, or the contracting practices of the Department of Justice)
leads to a harmonization beyond that provided for in the legislation and even beyond what
Parliament intended.

The harmonization of substantive solutions within federal law
interacting with provincial law can be expressed in a single text in both English and
French. Drafters can also strive for harmonization by stating the same idea in each legal
tradition in a text with two voices for each language.

The first difficulty, from this perspective, is to render the same
idea in both languages. Beyond any difficulty engendered by interaction between the two
legal traditions, the Crown Liability and Proceedings Act suffers from certain
weaknesses in translation. In particular, one can point to the disparity between the
content of the two versions of section 13 and the terminological waltz involving the terms
"private person","personne physique","particulier",
"person", and "subject" (s. 3) and the terms "fait
générateur" and "cause of action" (ss. 12 and 22). Moreover, the search
for a single, but appro­priate, term quickly leads to problems relating to bijuralism.
The Crown Liability and Proceedings Act, which was quite obviously first drafted in
English and on the basis of the common law, presents many examples of these problems.

- The first type of problem involves terms that have no content in
one of the two legal traditions, but which are nonetheless inserted into the Act in both
languages. Here, the translation reflects only one legal tradition. This is the case, inter
alia, with the terms "dommages-intérêts spéciaux/special damages" (s.
31(3)), "particulier/private person" (s. 5),"real property" and
"personal property" (s. 13), and "ordonnance d'exécution" (s. 22(1)),
which have no content in the civil law tradition.

- The second type of problem arises when a term exists in both legal
traditions, but the meaning varies from one tradition to the other. For example, the Act
contains the terms "représentant/representative" (ss. 10 and 11),
"occupation" (ss. 3 and 13),"possession" (s. 3) and
"detention" (s. 14), which do not have the same meaning in civil law as in
common law. An interesting aspect of this problem is demonstrated by the statutory
definition of "préposé/servant" (s. 2), in which the semantic content of words
that are more or less equivalent is rendered heterogeneous by a perhaps unnecessary effort
to obtain legislative symmetry.

- The third type of problem is that of "semi-bijural";
translation, which relies on a single term in each language but associates each language
with a legal tradition. This occurs with "privilège" and "lien" (s.
14), with "organisme mandataire de la couronne" and "agency of the
Crown" (s. 9), and with "bien meuble" and "personal
property" or "bien immeuble" and "real property" (s. 13).

- The final type of problem relating to textual unity is the attempt
to find a neutral term that can convey the same normative content in both legal
traditions. Some terms are neutral in that a given concept has exactly the same content,
and uses the same terminology in both the civil law and the common law. One example of
this is the pair "préposé/servant" (at least under the Civil Code of Lower
Canada). However, it is also possible to find terms that do not have specific roots in
either legal tradition and can convey a single concept: one example of this is "fait
préjudiciable", which was used in the previous version of the Act but was
unfortunately translated as "tort".

Considering its history and the fact that it is based on the common
law, the Crown Liability and Proceedings Act contains very few cases of textual
duality, that is, the use of terms connected with both legal traditions in each language.
Those that are included essentially support the normative diversity of the Act.

Two examples of this phenomenon come to mind. To begin with, the Act
makes an express reference to provincial law, and thus to the normative diversity that
results therefrom. This is the case,inter alia, with interest (s. 31), in respect
of which a single text in both languages refers to provincial law. In other cases,
normative diversity results from a single text, but on the basis of the presumed intention
of Parliament. Thus, the concepts of "dommage/damage" (ss. 4 and 9) have very
different meanings in civil law and common law even though expressed in the same terms.
However, it might be thought that the reference made by Parliament presupposes that the
Act is to be applied differently from one province to another. The same reasoning applies
to the meaning of "duty attaching to the . . . occupation . . . of property/devoirs
liés à . . . l'occupation . . . de biens" (s. 3), which varies not only
between civil law and common law, but also from one common law province to another.[3]

Considering the importance of the complementarity of provincial law
in the Crown Liability and Proceedings Act, particular attention must be paid to
the identification of terms (or doublets of terms, to be more precise) that will ensure
that both versions refer to the same notions despite the diversity of the legal systems to
which they are referring. Sections 3 and 13 are interesting in this regard. The definition
of "délit civil/tort" (s. 2) will also be considered from this perspective. As
this definition is the basis for the reference in section 3, it can be said to have two
very prominent flaws.

The first of these flaws relates to the fact that the doublet is not
symmetrical in the two languages. Whereas the English version includes the expression
"delict and quasi-delict", the French version defines "délit civil"
in civil law terms. However, this first flaw is explained in part by the second: the
single term, which is defined using doublets, is itself not neutral. To avoid this
problem, it would be preferable to use a single neutral term (such as "acte ou fait
préjudiciable/damaging event") and to define it using a truly symmetrical doublet:
"tort, délit ou quasi-délit"/"tort, delict or quasi-delict".

This then is a broad outline of the main observations that flow from
an examination of the Crown Liability and Proceedings Act. A more detailed survey
can be found in the discussions relating to the Act itself, which are appended to these
brief preliminary comments. I have taken Gaspard Côté's enlightening comments[4] into account in preparing
this discus­sion. In order to avoid unnecessary repetition, the commentary touches in so
far as possible upon aspects of the analysis of this Act that were not dealt with in
detail in Côté's paper. The two papers must therefore be read together. Moreover, even
though such divisions are always somewhat artificial, the comments are divided into three
subjects for ease of consultation. Thus, there are comments on bilingualism (translation
difficulties in French or in English), bijuralism (translation difficulties in
civil law and common law) and the new civil law (difficulties flowing from the
coming into force of the new Civil Code of Québec).[5]

An Act respecting the liability of the Crown and
proceedings by or against the Crown

SHORT TITLE

1 Short title

1. This Act may be cited as the Crown Liability and Proceedings Act.

R.S., 1985, c. C-50, s. 1; 1990, c. 8, s. 21

Bilingualism

Liability = responsabilité civile

In the civil law, the term "responsabilité civile" is
translated as "civil liability" and covers both contractual civil liability and
extracontractual civil liability. It is probably not necessary to amend the English title
to reflect this practice. Likewise, the term "contentieux administratif" has a
connotation in French that is broader than "crown proceedings", since it also
covers proceedings connected with the judicial review of administrative decisions.
Moreover, the word "proceedings" means actions, as opposed to "procédures
applicables" [applicable procedures]. Once again, this is not an inconsequential
difference. Finally, the words "État" in French and "Crown" in
English do not convey the same reality.[6] This last minor problem has already been mentioned by Professors Kasirer and
Brierley in their study on the Federal Real Property Act.[7]

"Crown ship" means a ship, as defined in section 673 of the Canada
Shipping Act, that is owned by or is in the exclusive possession of the Crown;

2 "servant" «préposés»

"servant" includes agent, but does not include any person appointed or
employed by or under the authority of an ordinance of the Yukon Territory or the Northwest
Territories;

2 "tort" «délit...»

"tort" includes delict and quasi-delict.

R.S., 1985, c. C-50, s. 2; 1990, c. 8, s. 22

Bilingualism

The French version of the definition of "navire de
l'État" [Crown ship] could be interpreted as though the word "exclusive"
qualified both "possession" and "propriété" [ownership]; this
interpretation cannot be retained in light of the English version. The ambiguity could be
significant, as it would then be necessary to attribute a meaning to the concept of
"propriété exclusive".

Bijuralism

Tort = délit civil

The definition in doublet form is not symmetrical, as the English
version adds to the normal meaning of "tort" by including "delict and
quasi-delict", whereas the French version suggests that "délit civil" is
the same thing as "délit ou quasi-délit".

Possession = possession

The word "possession" has a technical meaning in the civil
law (it is the actual exercise of a real right that a person claims to hold). This is not
necessarily the meaning Parliament intended to give this word in the Act. Should it
instead be understood to mean the actual control of the thing?

Servant = préposés

Although the seventh paragraph of article 1054 of the Civil Code
of Lower Canada provided that masters and employers were responsible for the fault of
their "domestiques et ouvriers" [servants and workmen], the
"préposé" concept has been known to Quebec commentators and courts for a long
time. As for article 1463 of the Civil Code of Québec, it presupposes that the
"préposé" concept is identical to that of "servants and agents".
This new translation, which is different from that used in the Civil Code of Lower
Canada ("servants and workmen"), introduces a neologism into the English
civil law terminology of Quebec. The Civil Code of Lower Canada did contain the
term "agent" (arts. 1735 et seq.), but it had a very different meaning.
In any event, the expression "servants and agents" should probably be
consi­dered the equivalent of the word "préposé" in the new Civil Code,
whereas at common law the concepts of "servant" and "agent" are quite
distinct.[8] This
difference between the two legal traditions leads to an asymmetrical definition of
"préposé/ servant" in the Act, because the inclusion of
"mandataires" in the definition of "préposés" (in the French version
but not in the English version) adds to this latter concept. Does this necessarily mean
that Parliament intended the Crown to be liable for a "mandataire" who is not
its "préposé"? The question is somewhat more acute now due to the changes that
flow from the coming into force of the Civil Code of Québec(see below). It should
also be noted that the civil law equivalent in English for "mandataire" is
"mandatary".

New civil law

Délit ou quasi-délit

This expression and its English equivalent [delict and quasi-delict]
have disappeared from the new Civil Code. It is not absolutely necessary to adapt the Act
to the new Quebec civil law terminology, as the terms "délit" and
"quasi-délit" have well-known meanings in the civil law. However, in addition
to the possibility that some may find that the utilization of terms no longer being used
in Quebec law is inelegant, there is still the danger that some may conclude from the
continued use of these terms in the Act that the reference to Quebec law is not dynamic
and does not include the new Quebec law.[9] As for deciding which term or expression should be used to replace these
words if necessary, it would not necessarily be wise to follow the example of the Quebec
legislature, which in section 423 of the Act respecting the implementation of the
reform of the Civil Code,[10] suggests using the words "faute au sens de la responsabilité civile
extracontractuelle/fault in the context of extra-contractual civil liability". Under
the former Civil Code, "délits ou quasi-délits" covered types of
extracontractual civil liability based on fault as well as those that could arise in the
absence of fault. Be that as it may, paragraph 3(a) has generally been interpreted
as requiring proof of the servant's fault (here understood in a narrow sense analogous to
the "negligence" of common law).[11] It is important to be precise, because in common law, liability in tort can
include certain types of no-fault liability. Assuming that what is desired in this respect
is normative uniformity and that the Crown can be held liable for its servant's acts even
in the absence of obvious fault on the servant's part, the expression "fait
générateur de responsabilité civile extracontractuelle" [act attracting
extracontractual civil liability] would be more appropriate.

Préposés et mandataires

The inclusion of "mandataires" [mandataries] in the
definition of "préposés" raises another problem: are mandators liable for
mandataries who are not their "préposés"? It is possible for a civil law
mandatary to have a freedom of action that a "préposé" would not have. Under
the former Civil Code, mandators were liable for the fault of their mandataries pursuant
to article 1731 C.C.L.C. The ambiguity of this provision gave rise to some controversy.
The new Code resolves the controversy: it draws a clear distinction between a mandatary
who is equivalent to a «préposé», for whose acts the mandator is liable irrespective
of fault (under article 1463 C.C.Q.), and a mandatary who is not the mandator's
"préposé", for whose fault the mandator is liable only if unable to rebut the
presumption of fault provided for in article 2164 C.C.Q. From the perspective of an open
or dynamic reference to Quebec's jus commune, the extent to which this change
affects the scope of the federal Crown's liability in Quebec will have to be determined.

3. The Crown is liable in tort for the
damages for which, if it were a private person of full age and capacity, it would be
liable

(a) in respect of a tort committed by a servant of the Crown; or

(b) in respect of a breach of duty attaching to the ownership, occupation,
possession or control of property.

R.S., c. C-38, s. 3

Bilingualism

Private person = personne physique

The term "personne physique" is usually translated as
"natural person". "Private person" does not have a clear meaning in
the civil law and might lead to confusion with the concept of a "legal person
established for a private interest" referred to in the Civil Code of Québec. This problem has already been pointed out by Professors Brierley and Kasirer in relation
to the Federal Real Property Act.[12] Any revision of the Act in this respect must be done very carefully in light
of the importance of consistently using the same expressions in all federal statutes. The
problem is especially acute here, since the translation of "private person"
varies from section to section within the Act ("personne physique" in sections 3
and 4, and "particulier" in sections 5 and 21; the term "particulier"
is itself translated as "persons" in sections 22 and 30, and as
"subject" in sections 31, 31.1, 32 and 34 of the Act).

The Crown is liable in tort for the damages... = en matière de responsabilité
civile délictuelle, l'État est assimilé...

The words "for the damages" affect the scope of the relief
that can be sought from the Crown, restricting it to compensation (the payment of
damages). The French version is broader, as it does not limit the relief normally
available for delictual liability, including specific performance of the obligation.
However, this disparity is of little consequence, since section 22 of the Act makes it
impossible to obtain an order for specific performance against the Crown. Nevertheless, it
should be noted that the possibility of awarding punitive damages pursuant to section 3,
as was done in Peeters v. Canada (1993), 108 D.L.R. (4th) 471, would
probably be more restricted in the civil law.

Bijuralism

Breach of duty = manquement aux obligations

The expression "manquement aux obligations" is a bit
awkward from a civil law point of view. The courts interpreted the original wording of the
1953 Act, which read "un manquement au devoir afférent à la
propriété ... ", quite narrowly, as Côté has mentioned in his analysis.[13] The use of the singular
in the French version led the Supreme Court of Canada to exempt the federal Crown from the
application of a provincial statute that imposed certain specific duties that were not of
general application.[14] It has been suggested that this decision should be read as limiting the
reference to the provincial jus commune, which would make it necessary to
distinguish obligations that flow from the jus commune from those that flow from
specific rules.[15] Moreover, the Federal Court relied on the former wording to hold that article 1055
C.C.L.C. did not apply to the federal Crown. In Pratte J.'s view, the possibility that an
owner would be responsible under article 1055 for the fault of another conflicted with the
idea of a "duty" within the meaning of paragraph 3(1)(b) [now 3(b)] that
is directly imposed on the owner and would attract liability if breached.[16]

Both of these very narrow interpretations, which have the effect of
rejecting the complementarity of Quebec civil law to a certain point, are possibly less
acceptable today in light of the new French wording, which refers to
"obligations" in the plural. This term is more consistent with the liability to
reparation for injury that flows from article 1466 C.C.Q. Nonetheless, the English version
still contains the term "duty", the scope of which is potentially narrower, at
least in the civil law.

One possible solution to this problem would be to draft section 3 in
the form of a doublet with paragraphs. In my opinion, if this solution were accepted, it
should be used only for paragraph (b) and should be in as simple a form as
possible. It could refer in clear language to "la responsabilité pour le préjudice
causé par le fait des biens que l'État a sous sa garde ou dont elle est propriétaire,
ou par la faute de l'État à l'un ou l'autre de ces titres" [liability for injury
resulting from the act of property over which it has control or of which it is the owner,
or from the fault of the Crown in such capacity]. Moreover, this wording appears to me to
be consistent with the common law, and could probably be translated in bijural language.

This list was clearly first drafted from a common law perspective,
and it is an exact copy of the English and provincial legislation in this area.[17] It is therefore
problematic from a civil law point of view. The concepts of "occupation" and
"possession" in particular have a technical meaning in the civil law that is
incongruous in the context of civil liability. However, this incongruity does not seem to
have caused any problems of interpretation for the courts.[18] Moreover, "control of
property" does not necessarily convey the same concept as "garde de biens".
In the civil law, the term "care" (1054(1) C.C.L.C.) or "custody"
(1465 C.C.Q.) is usually used to convey this reality.

New civil law

Gaspard Côté has raised the possibility of adding the words
"dans l'exécution de ses fonctions" [in the performance of the duties of his
office] here to ensure the consistency of the reference with provincial law.[19] This is a valid
observation, but it is certainly not imperative that this amendment be made. Since the
Crown is likened to a private person in this context, there is no risk that it will be
found liable for the fault of its "servants" outside the normal duties of their
offices as long as provincial law makes this condition a factor in an employer's
liability. Moreover, it should be noted that contrary to the Civil Code of Lower
Canada, article 1463 C.C.Q. makes the fault of the "agent or servant"
an essential condition of a principal's liability. Consequently, it might be thought that
a master is not liable when his or her "servant" is personally liable in the
absence of fault. The term "délit civil", as defined in the Act, is broader
than the concept of extra­contractual fault and would make it possible to hold the Crown
liable toward third parties where its "servants" are personally liable even in
the absence of fault. Finally, article 1464 C.C.Q. probably does not apply directly to the
federal Crown if its effect is to extend its liability beyond the scope set out in the Act
(which is open to question).

Responsabilité civile délictuelle

Reference in the former law to "responsabilité civile
délictuelle" [delictual liability] was generally interpreted liberally as including
quasi-delictual liability (see the title of the book by Jean-Louis Baudouin); technically,
however, the expression covers only liability flowing from an intentional act. In light of
the change in terminology in the Civil Code of Québec, the term
"responsabilité extracontractuelle" [extracontractual liability] would probably
be more appropriate. Whichever term is used, they both cover non-contractual liability in
the broad sense, that is, liability based on fault and liability based on particular
systems of presumption and of strict liability.

4. The Crown is liable for the damage sustained
by any person by reason of a motor vehicle, owned by the Crown, on a highway, for which
the Crown would be liable if it were a private person of full age and capacity.

R.S., c. C-38, s. 3.

Bilingualism

Private person = personne physique

See discussion under section 3.

Damage = dommages

The word "dommages" in the plural is ambiguous in the
civil law, as it also is at common law: it can refer either to an injury or to damages,
that is, an amount paid to a victim as compensation for an injury. Although this ambiguity
is not serious in the context of section 4, it would be preferable to remove it. The best
solution would be to use the word "dommage/damage" in the singular. Use of the
word "préjudice/ injury" would have certain consequences from a common law
point of view.

The French version places no restrictions on the nature of the
injury sustained, which may be material, moral or bodily, to use the categories found in
the Civil Code of Québec. The English version may be narrower in that it can be
interpreted as restricting the relief available to that for personal injury, that is,
bodily injury.

New civil law

Gaspard Côté has already pointed out the problems resulting from
the decision of the Exchequer Court in Lamoureux v. R., [1964] Ex.C.R. 641.[20] The validity of this
decision may once again be questioned in light of Schmitz v. R., [1974] 2
F.C. 898, Stuart v. Canada, [1989] 2 F.C. 3, and in particular R. v. Nord-Deutsche
Versichersungs-Gesellschaft, [1971] S.C.R. 849. Nevertheless, Côté is right to
suggest that section 4 should be amended in order to remove all ambiguity as to the open
nature of the reference contained in this section.

5. (1) Subject to subsection (2), the law
relating to civil salvage, whether of life or property (except sections 453 to 456, 459 to
463 and 465 of the Canada Shipping Act), applies in relation to salvage services
rendered in assisting any Crown ship or aircraft, or in saving life therefrom, or in
saving any cargo or apparel belonging to the Crown, in the same manner as if the ship,
aircraft, cargo or apparel belonged to a private person.

6. (1)
Subject to subsection (2), sections 572 and 574 to 582 of the Canada Shipping Act apply for the purpose of limiting the liability of, and certain time periods respecting
proceedings against, the Crown in respect of Crown ships.

(2) Where, for the purposes of any
proceedings under this Act, it is necessary to ascertain the tonnage of a ship that has no
register tonnage within the meaning of the Canada Shipping Act, the tonnage of the
ship shall be ascertained in accordance with section 94 of that Act.

7. (1) Section 471
of the Canada Shipping Act applies in respect of salvage services rendered to Crown
ships or aircraft as it applies in respect of salvage services rendered to other ships or
aircraft.

8. Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted
in the exercise of any power or authority that, if those sections had not been passed,
would have been exercisable by virtue of the prerogative of the Crown, or any power or
authority conferred on the Crown by any statute, and, in particular, but without
restricting the generality of the foregoing, nothing in those sections makes the Crown
liable in respect of anything done or omitted in the exercise of any power or authority
exercisable by the Crown, whether in time of peace or of war, for the purpose of the
defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.

R.S., c. C-38, s. 3.

Bilingualism

Power or authority conferred on the Crown by any statute = pouvoir... qui
s'exercerait au titre... d'une disposition législative

The French version uses the term "pouvoir", whereas the
English version refers to a "power or authority". It should be determined
whether these two concepts are identical. However, there is a more significant textual
difference: the English version refers to a "power or authority conferred on the
Crown by any statute", but the French version does not restrict the application
of the section to the "pouvoirs" conferred on the Crown by statute.[21] This can be compared
with the wording of the final part of the French version, which refers to "faits
commis dans l'exercice d'un pouvoir dévolu à l'État" ["anything done or
omitted in the exercise of any power or authority exercisable by the Crown"].

9. No proceedings lie
against the Crown or a servant of the Crown in respect of a claim if a pension or
compensation has been paid or is payable out of the Consolidated Revenue Fund or out of
any funds administered by an agency of the Crown in respect of the death, injury, damage
or loss in respect of which the claim is made.

R.S., c. C-38, s. 4.

Bilingualism

The French version does not have the same structure as the English
version and is potentially broader, although it is hard to imagine a type of injury that
would be covered by only one of the versions.

Bijuralism

The term "perte/loss" does not have a specific technical
meaning in the civil law, although it is used, for example, in articles 1611 and 1612 of
the Civil Code of Québec, in opposition to a loss of profit. Section 9 quite
clearly refers to "dommage/ damage", and that term could replace the enumeration
in both versions. It may be preferable to the "préjudice/ injury" doublet,
which may have a more restrictive connotation in common law and be associated with bodily
injury.

Agency = mandataire

These two expressions are commonly used together, but the proper
translation of "mandataire" in the civil law is "mandatary". However,
one might ask whether "mandataire/ agency" is in fact a reference to provincial
private law or whether it is not instead a term with a distinctive meaning in federal law.

10. No proceedings lie against
the Crown by virtue of paragraph 3(a) in respect of any act or omission of a
servant of the Crown unless the act or omission would apart from the provisions of this
Act have given rise to a cause of action in tort against that servant or the servant's
personal representative.

R.S., c. C-38, s. 4.

Bijuralism

Personal representative = représentants

This problem has already been pointed out by Gaspard Côté, and not
much can be added to what he has written on the issue.[22] In contemporary Quebec civil law, the
term "représentant/ representative" refers to a person who performs a juridical
act in the name and on behalf of another person. Such a person may be a tutor, a curator,
or even a mandatary. In the former Civil Code, this term sometimes meant a successor
(article 1030 C.C.L.C.), and it also appeared in the specific successional context of
representation (articles 619 C.C.L.C. et seq.). The reality covered by the term
"representative" is somewhat different at common law, as it also includes the
persons responsible for administering an estate. Parliament's intention should be
clarified in order to determine the meaning these words should be given. Considering the
context, it would probably be advisable, as Côté suggests, to adopt a neutral term that
applies to a succession or estate in both legal traditions.

11. No proceedings lie against the Crown by
virtue of section 4 in respect of damage sustained by any person by reason of a motor
vehicle on a highway unless the driver of the motor vehicle or the driver's personal
representative is liable for the damage so sustained.

12. (1) No proceedings lie against the
Crown by virtue of paragraph 3(b) unless, within seven days after the claim arose,
notice in writing of the claim and of the injury complained of has been served on a
responsibleofficial of the department or agency administering the property or the employee
of the department or agency who is in control or charge of the property.

(2) Failure to give, or insufficiency of, the notice
required by subsection (1) is not a bar to the proceedings if the court in which the
proceedings are taken is of the opinion that the Crown in its defence was not prejudiced
by the want or insufficiency of the notice and that to bar the proceedings would be an
injustice, notwithstanding that reasonable excuse for the want or insufficiency of the
notice is not established.

R.S., 1985, c. C-50, s. 12; 1990, c. 8, s. 23.

Bilingualism

The claim arose = fait générateur du litige

Both expressions contain the same ambiguity, namely how to determine
the time when the claim can be said to have arisen. As the same type of problem is likely
to arise in applying the provisions of the Act concerning the jurisdiction of the courts,
interest and prescription, it would be advisable to use consistent language. However,
"fait générateur" is translated in subsection 21(2) as "cause of
action". Elsewhere in section 21, "cause d'action" is translated as
"claim". Section 31 contains the term "créance/claim", and the words
"faits générateurs" have become "faits générateurs de l'instance"
which is not a common usage in the civil law. All these provisions should be studied
together with section 32 to ensure that the terminology is consistent.

Employee of the department or agency who is in control or charge of the property = agent du ministère ou de l'organisme qui en est responsable

There are a few disparities here between the two versions, which may
acquire different meanings. First, "agent" is not a common translation for
"employee" in the civil law. Second, the terminology of section 10, specifically
the term "organisme mandataire/agency of the crown", has not been repeated here.

Bijuralism

Administering the property = gestion du bien

Professors Kasirer et Brierley have already pointed out with respect
to the Federal Real Property Act that these two expressions are not necessarily
equivalent, especially in light of the new provisions of the Civil Code of Québec relating to the administration of the property of others.[23]

New civil law

The requirement that notice in writing of the claim be served in
such a short period is inconsistent with article 2930 C.C.Q., but it should be mentioned
that article 2930 cannot prevail over a specific rule of a federal statute that provides
otherwise.

(2) Where the Governor in Council has, by order published in
the Canada Gazette, declared that the Crown has, before, on or after November 1,
1954, ceased to be in control of any specified personal property or to be in occupation of
any specified real property, paragraph 3(b) is not applicable in respect of the
specified property from the day of publication of the order until the day the order is
revoked.

R.S., c. C-38, s. 5.

Bilingualism

There is a fundamental difference between the French and English
versions, which has already been pointed out by Professors Dussault and Borgeat.[24] In the French version,
ownership of the property by the Crown is an essential condition of liability under
paragraph 3(b). On the other hand, the English version suggests that if the
property belongs to the Crown, paragraph 3(b) is not applicable unless the
conditions set out in section 13 are met, but it does not restrict the application of
paragraph 3(b) in other cases. This error must be corrected immediately in a
direction that respects Parliament's intention. Under Quebec civil law, the effect of the
French version is to exclude the Crown from liability for the autonomous act of the thing
where the Crown has custody of the property (this is what "responsabilité
matérielle" probably means) but is not the owner thereof. Similarly, this version
excludes the owner of an animal or an immovable from liability under articles 1466 and
1467 C.C.Q. where the owner does not have custody ("responsabilité
matérielle") of the property or does not occupy the immovable.

Physical control = responsabilité matérielle

The French term does not have a clear meaning in the civil law, and
it is not clear that this is a proper translation of the English version even at common
law.

Bijuralism

Personal property = biens meubles / Real property = biens immeubles

This is a case of a "semi-bijural" translation; its
consequence is that the conditions of application of each paragraph are not the same at
common law and in the civil law, since the terms do not have the same meanings in both
languages.

Entered into occupation = a eu l'occupation

See discussion under section 3. It should also be noted that the
verb tenses used here do not necessarily refer to the same point in time, as the English
version suggests a continuity in occupation that is not clear from the French version.

14. Nothing in this Act authorizes
proceedings in rem in respect of any claim against the Crown, or the arrest,
detention or sale of any Crown ship or aircraft, or of any cargo or other property
belonging to the Crown, or gives to any person any lien on any such ship, aircraft, cargo
or other property.

R.S., c. C-38, s. 6.

Bijuralism

Detention = détention

The word "detention" has a technical meaning in the civil
law: "[a]ctual control of a thing" or "[d]etention based on a title which
implies acknowledgement . . . of the superior rights of another in the thing held".[25] It is not clear that
this is what this word should be understood to mean in the context of section 14.

New civil law

Lien = privilège

Since the term "privilège" [privilege] has disappeared
from the new Civil Code, its replacement should be considered here, as elsewhere in
federal legislation. A term consistent with the meaning of the "privilège"
concept in this particular statute must be found, and given a bijural translation. It
would probably not be sufficient for this purpose to replace "privilège" with
"priorité" [prior claim] without amending the English version, which disregards
the civil law, and without considering the intention of Parliament concerning the
guaranteed rights dealt with in section 14.

15. [Abrogé, 1990, ch. 8, art. 24]

15. [Repealed, 1990, c. 8, s. 24]

Atteintes à la vie privée

Invasion of Privacy

Sections 16 to 19

Bilingualism

Loss or damage (sections 17 and 18) = dommage ou perte

See discussion under section 9.

New civil law

Article 1621 C.C.Q. will undoubtedly be taken into account in
assessing the quantum of the damages due to a person who incurred the loss or damage in
question, to a maximum of five thousand dollars for each such person as set out in section
17. Furthermore, since this section makes it possible to order the Crown to pay, as the
servant's employer and without personal fault, the punitive damages awarded against the
servant, it can be argued that here it goes beyond the provincialjus commune in
this area.

21. (1) In all cases where a claim is made against the Crown, except
where the Federal Court has exclusive jurisdiction with respect thereto,

(a) the county or district court of the province in which the
claim arises that would have jurisdiction under the laws of that province if the claim
were against a private person of full age and capacity, or

(b) if there is no such county or district court or the
county or district court does not have that jurisdiction, the superior court of the
province has concurrent jurisdiction with respect to the subject-matter of the claim.

21(2) Where proceedings pending in Federal Court

(2) No court in a province has jurisdiction to entertain any
proceedings taken by a person if proceedings taken by that person in the Federal Court in
respect of the same cause of action, whether taken before or after the proceedings are
taken in the court, are pending.

22. (1) Where in proceedings against the Crown any relief is sought
that might, in proceedings between persons, be granted by way of injunction or specific
performance, a court shall not, as against the Crown, grant an injunction or make an order
for specific performance, but in lieu thereof may make an order declaratory of the rights
of the parties.

22(2) Servants of Crown

(2) A court shall not in any proceedings grant relief or make an
order against a servant of the Crown that it is not competent to grant or make against the
Crown.

R.S., 1985, c. C-50, s. 22; 1990, c. 8, s. 28.

Bilingualism

Persons = particuliers

See discussion under section 3.

Bijuralism

This wording is based entirely on the common law, as it refers to
two concepts that are distinct at common law but that overlap in the civil law. At common
law, "injunction" refers to the general power of the courts to order that a
thing be done, whereas "specific performance" is a term of contract law relating
to the performance of specific contract obligations. In the civil law, "specific
performance" includes all forms of performance in kind, including the performance in
kind of an extracontractual obligation, which will in most cases be obtained by means of
an injunction. The term "ordonnance d'exécution". has no specific meaning in the
civil law and could be replaced by "exécution en nature" without affecting the
provision's bijuralism.

23. (1) Proceedings against the Crown may be taken in the name of the
Attorney General of Canada or, in the case of an agency of the Crown against which
proceedings are by an Act of Parliament authorized to be taken in the name of the agency,
in the name of that agency.

(2)
Where procedings are taken against the Crown, the document originating the
proceedings shall be served on the Crown by serving it on the deputy Attorney General of
Canada or the chief executive officer of the agency in whose name the proceedings are
taken, as the case may be.

25. In any proceedings against the Crown, judgment shall not be
entered against the Crown in default of appearance or pleading without leave of the court
obtained on an application at least fourteen clear days notice of which has been given to
the Deputy Attorney General of Canada.

R.S., 1985, c. C-50, s. 25; 1990, c. 8, s. 31.

26 Procès sans jury

26. Les procès instruits
contre l'État ont lieu sans jury.

L.R. (1985), ch. C-50, art. 26; 1990, ch. 8, art. 31.

27 No jury trials

26. In any proceedings against the Crown, trial shall be without a
jury.

(2)
Costs awarded to the Crown shall not be disallowed or reduced on taxation by reason only
that the solicitor or counsel who earned the costs, or in respect of whose services the
costs are charged, was a salaried officer of the Crown performing those services in the
discharge of the officer's duty and was remunerated therefor by a salary, or for that or
any other reason was not entitled to recover any costs from the Crown in respect of the
services so rendered.

30. (1) On
receipt of a certificate of judgment against the Crown issued pursuant to the regulations,
the Minister of Finance shall authorize the payment out of the Consolidated Revenue Fund
of any money awarded by the judgment to any person against the Crown.

31. (1) Except as otherwise provided in any other Act of Parliament and subject to subsection
(2), the laws relating to prejudgment interest in proceedings between subject and subject
that are in force in a province apply to any proceedings against the Crown in any court in
respect of any cause of action arising in that province.

(2)
A person who is entitled to an order for the payment of money in respect of a cause of
action against the Crown arising outside any province or in respect of causes of action
against the Crown arising in more than one province is entitled to claim and have included
in the order an award of interest thereon at such rate as the court considers reasonable
in the circumstances, calculated

(a) where the order is made on a liquidated claim, from the date or dates the
cause of action or causes of action arose to the date of the order; or

(b) where the order is made on an unliquidated claim, from the date the person
entitled gave notice in writing of the claim to the Crown to the date of the order.

(3) Where an order referred to in
subsection (2) includes an amount for special damages, the interest shall be calculated
under that subsection on the balance of special damages incurred as totalled at the end of
each six month period following the notice in writing referred to in paragraph (2)(b)
and at the date of the order.

Bijuralism

Special damages = dommages-intérêts spéciaux

This concept is unknown to the civil law in this form. At common
law, it is the opposite of "general damages", that is, those damages that are
presumed to be the natural consequence of a "wrong" committed by a person. In
this sense, "special damages" are damages that flow from the specific
circumstances and situation of the victim, which often require specific proof and prior
notice at common law. A distinction is sometimes made between special damages, which can
be assessed precisely (pre-trial expenses and losses), and general damages, which are said
not to be susceptible of precise assessment (loss of future earning capacity, pain and
suffering, etc.).

(5) A court may, where it
considers it just to do so, having regard to changes in market interest rates, the conduct
of the proceedings or any other relevant consideration, disallow interest or allow
interest for a period other than that provided for in subsection (2) in respect of the
whole or any part of the amount on which interest is payable under this section.

(6) This section applies in respect of
the payment of money under judgment delivered on or after the day on which this section
comes into force, but no interest shall be awarded for a period before that day.

31(7) Canadian maritime law

(7) This section does not apply in respect of any case in which a claim for relief is
made or a remedy is sought under or by virtue of Canadian maritime law within the meaning
of the Federal Court Act.

31.1 (1) Except as otherwise provided in any other Act of Parliament and subject to subsection
(2), the laws relating to interest on judgments in causes of section between subject and
subject that are in force in a province apply to judgments against the Crown in respect of
any cause of action arising in that province.

31.1(2) Judgment interest, causes of action outside or in
more than one province

(2) A judgment against the Crown in respect of a cause of action
outside any province or in respect of causes of action arising in more than one province
shall bear interest at such rate as the Court considers reasonable in the circumstances,
calculated from the time of the giving of the judgment.

(2) Every tender of a sum of money on
behalf of the Crown shall be deemed to be legally made if made by a written offer to pay
the sum, given under the hand of a minister of the Crown, or a person acting for that
minister in that behalf, and notified to the person having the claim to that sum.

32. Except as
otherwise provided in this Act or in any other Act of Parliament, the laws relating to
prescription and the limitation of actions in force in a province between subject and
subject apply to any proceedings by or against the Crown in respect of any cause of action
arising in that province, and proceedings by or against the Crown in respect of a cause of
action arising otherwise than in a province shall be taken within six years after the
cause of action arose.

R.S., 1985, c. C-50, s. 32; 1990, c. 8, s. 31.

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Cause of action = fait générateur

See discussion under section 12.

Bijuralism

Prescription and the limitation of actions = Prescription

In the civil law context, the French term covers both acquisitive
prescription and extinctive prescription. The English phrase has the appearance of a
doublet in this respect, but it also evokes two distinct common law realities that do not
necessarily have the same content as the civil law concept of prescription.

33. Except as
otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence
or any presumption relating to the extent to which the Crown is bound by an Act of
Parliament.

R.S., c. C-38, s. 20.

Bilingualism

The extent to which the Crown is bound by an Act of Parliament = degré
d'obligation imposé à l'État par les lois fédérales

As Côté has pointed out, the French version is a rather poor
rendering of Parliaments intention to preserve the scope of the Crown's immunity with
respect to federal legislation.[26] It should be redrafted.

36. For
the purposes of determining liability in any proceedings by or against the Crown, a person
who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted
Police shall be deemed to have been at that time a servant of the Crown.

"(2) Every proceeding commenced before the coming into force of this section under
a provision amended by the schedule shall be taken up and continued under and in
conformity with the amended provision without any further formality."

38. The
definition "servant" in section 2 is repealed and the following substituted
therefor:

"servant"

"servant" includes agent, but does not include any person appointed or
employed by or under the authority of an ordinance of the Yukon Territory or the Northwest
Territories or a law made by the Legislature for Nunavut or continued by section 29 of the Nunavut Act.

Footnotes

* Analysis
prepared for the Department of Justice of Canada, March 1996.

[1] A. Morel and J.M. Brisson,"Federal Law and Civil Law: Complementarity and
Dissociation," paper prepared for the Department of Justice of Canada, March 1995.

[2] On this subject, see the article by L. Levert, "Le bijuridisme législatif",
presented in Montreal on March 25, 1996, from which I have borrowed the methodology.

[3] Five provinces have statutory schemes for an occupant's liability: British Columbia,
Alberta, Ontario, Manitoba and Prince Edward Island.

[5] On this last subject, i.e. the impact of the new law, the comments assume that the
reference to Quebec law, at least for that part of Quebec law that can be described as thejus commune, is evolving or dynamic. Despite the controversy that has raged over
this question, it seems that this solution is the one that has received the most support
from commentators and the courts, and that the Crown is hesitant to apply it today. See in
particular R. Dussault and L. Borgeat, Administrative Law: a Treatise, 2nd ed.
(Toronto: Carswell, 1990), Vol. 5, at pp. 66-76. Whatever the case, should reference to
the new civil law be considered closed, the comments relating to it can be disregarded.

[6] The expression "État" is translated as "Crown" throughout the Act.

[7] J.E.C. Brierley and N. Kasirer,"Review of the Federal Real Property Act / Loi sur
les immeubles fédéraux in light of the coming into force of the Civil Code of Québec," study prepared for the working group on the revision of federal
statutes, April 1995, at page 779.

[8] On the meaning of the word "agent" and how it relates to the subordination
concept inherent in the master-servant relationship, see H. Immarigeaon. La
responsabilité extra-contractuelle de la Couronne au Canada (Montreal: Wilson & Lafleur, 1966), at pp. 91-93. It should be noted that the 1953 Act used
the term «agent» in both English and French.

[9] This danger was raised by A. Morel in "La révision de la législation
fédérale à la lumière du Code civil du Québec," final report submitted to the
Department of Justice of Canada, March 1995, at p. 22.

[17] The wording used in the English version evokes forms of liability in which
human intervention is less important and suggests a category unique to common law. See,
for example, Duncan v. The Queen, [1966] Ex.C.R. 1080 (rule in Rylands v. Fletcher), and Mart Steel Corp. v. The Queen, [1974] 1 F.C. 45
(T.D.) (nuisance). On this subject, see in particular H. Immarigeon, supra note 8,
at p. 120.